Cohen v. Ward

Warner, J. Under the pleadings and evidence in this case, as disclosed by the record, the plaintiff was entitled to recover from the defendant for a breach of the implied warranty of title to the fifty shares of railroad stock sold and transferred by the defendant to the plaintiff under the contrae!, to which he [352] liad no title, and it made no difference, under the law of this State, whether it was a sale of stock for bonds, or a barter or exchange of stock for bonds: Code, 2614. The Court below erred in its charge to the jury, in restricting them as to the measure of damages which the plaintiff was entitled to recover, to the value of the bonds at the time the contract was made, or to the value placed on them by the parties at the time the contract was made, in view of the provisions of the Ordinance of 1865: Evans vs. Walker, 35th Georgia Reports, 117; Cherry vs. Walker, 36th Georgia Reports, 327; High vs. McHugh, 38th Georgia Reports, 285. The jury might or might not have believed that the proper measure of damages was the value of the bonds at the time the contract was made, according to the principles of equity applicable to the contract between the parties under the provisions of the Ordinance of 1865. It is true that the Court, in this case, did give the whole of the Ordinance in charge to the jury, but the effect thereof was practically neutralized and emasculated by the other objectionable portions of the charge. Let the judgment of the Court below be reversed and a new trial be granted.